Dworkin’s main objection to Hart’s positivism is that the law ought to “take rights seriously.” If Hart’s claim that the adjudication of a hard case rests upon a judge’s personal opinion, intuition or his exercise of strong discretion, then rights are seriously compromised. In Dworkin’s view, rights are more important than other considerations such community welfare. Rights must not be subordinated to the interest of the community. They must be recognized as a part of the law. Dworkin argues that history provides more support for individual rights and liberty than legal positivism does.
In Lost Empire, Dworkin attacks conventionalism and pragmatism. According to conventionalism, law is a function of social convention-cum-legal convention. In other words, law simply consists in following convention. In this view, judges may exercise strong discretion in adjudicating.
According to Dworkin, conventionalism fails to accurately describe the process of law making and to defend individual rights. Dworkin puts forth a theory of “law as integrity.” In this view, a judge rather than considering himself a conventionalist giving voice to his own moral or political convictions or those he considers the convictions of the legislature or the majority of the electorate, must consider himself rather as an author in a chain of the common law. In Dworkin’s own words, He knows that other judges have decided cases that although not exactly like this case, deal with related problems. He must think of their decisions as part of a long story he must interpret and then continue according to his own judgment of how to make the developing. According to his own judgment of how to make the developing story as good as it can be.
According to Dworkin, pragmatists are skeptical of the view that past political decisions justify state coercion. They find this justification in a judge’s exercise of such coercion as justified by the justice, efficiency or some other virtue of his action instead. Like conventionalism, this approach also fails to take right seriously. It assumes rights have no independent existence, but are simply an instrument to be used to make life better. According to pragmatism, judges are justified in making decisions based on what they deem best for the future of the community, regardless of past adjudication.
Dworkin argues that only his vision of “law as integrity” provides an acceptable justification for the state’s use of force. Law “is defined by attitude, not territory or power or process,” in Dworkin’s view. In other words, law is a politically interpretive concept that seeks to improve our lives and our community.
